Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment “hamstrings” government

In a Supreme Court debate Monday, one justice challenged allegations that the Biden administration collaborated with Big Tech to censor certain messages, and one justice commented on the relationship between the First Amendment and government. I frowned.

Case resulting from a lawsuit The bill, brought by Republican-led states of Missouri and Louisiana, would allow government officials to work with giant social media companies “in the name of combating misinformation” and end up blocking Hunter Biden’s laptop from the coronavirus. They accused it of leading to censorship of speech on topics including the origin of viral infections and the origin of infectious diseases. States have argued that face masks violate the First Amendment.

During nearly two hours of oral arguments, the justices debated whether the Biden administration had crossed a constitutional line and whether its cooperation with private companies constituted permissible persuasion or encouragement, or constituted unlawful coercion or threat of retaliation. .

“They treat Facebook and other platforms like their subordinates because they let the big clubs take advantage of them,” Justice Samuel Alito said. But Judge Ketanji Brown Jackson took a different approach.

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“In your view, the First Amendment has tremendous influence on the federal government at a time when it matters most,” he told attorneys representing Louisiana, Missouri and private plaintiffs. he said.

“Governments do indeed have an obligation to take steps to protect the people of this country by encouraging and even pressuring platforms to remove harmful information,” she said.

“Judge Jackson appears to be saying that he believes the state’s opinion precludes the government from presenting facts and positions to social media companies when there is some kind of danger or imminent threat.” said John Schuh, who served as a constitutional lawyer for both states. The Bush administration told Fox News Digital that the “heart” of the case “revolves around where the line between persuasion and coercion lies.”

“The First Amendment does not prevent government officials from complaining about a particular post or explaining why that post is factually incorrect. This is why it has a “community note” function.”

But Schuh said that the First Amendment does not allow the government to “explicitly or implicitly allow the government to do anything, even in the name of ‘national security,’ because it disagrees with or does not like its views.” “It prevents government officials from forcing publishers to remove posts or articles, regardless of the circumstances.” ” or “public health.”

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Supreme Court, February 28, 2024, in Washington. (AP Photo/Jacqueline Martin, File)

Missouri Attorney General Andrew Bailey said in an interview on Fox News Digital that Judge Jackson’s ruling was “absolutely correct.”

“It’s a drag, and it should be. The purpose of the Constitution is to protect us from the government, and the government exists to protect our rights. But here, the federal government It ignores Title I protections and weaponizes the federal government “to silence our voices,” Bailey said.

“And she’s right. It limits what the federal government can and cannot do. That’s a good thing,” he added.

The state lawsuits bring 67 federal agencies and officials to bear against platforms like Facebook and Twitter/X, primarily related to COVID-19 restrictions imposed by the past two administrations and the results of the 2020 presidential election. They claim that he forced them to censor their posts.

Those named include the White House communications staff, the Surgeon General, the FBI and the U.S. Cybersecurity Agency.

In a court order dated July 4, U.S. District Judge Terry A. Doughty issued a temporary restraining order prohibiting White House and executive branch officials from: Meeting with technology companies Regarding content moderation, it argued that such actions in the past “likely” violated the First Amendment.

The Fifth Circuit expanded the scope of the injunction, saying authorities cannot “compel or substantially encourage” changes to online content.

In its appeal to the Supreme Court, the Justice Department said, “A central aspect of presidential power is that the It is to take advantage of the prefectural government’s bullish pulpit.” interest. ” This includes areas such as public health, voting integrity, and national security threats.

At Monday’s oral argument, the conservative justices were the most vocal in their opposition to the federal government’s actions, but Justice Alito said in October when the appeal first arrived at the high court that it was “increasingly dominant.” “This is a strong-handed tactic that distorts the expression of opinions on the media.” Dissemination of news. ”

Justice Clarence Thomas suggested how the federal government might work more subtly with technology companies. “We just need to work together, I said, look, we’re right and they’re wrong. Let’s work together. You know, we’re on the same team. Let’s work together to stop this misinformation from spreading.” One of the following: ”

However, some of his conservative colleagues were concerned about excessive restrictions on the federal government. One of the theories raised in court was how to respond to an online epidemic. Young people were encouraged to record themselves jumping from windows to increasingly high heights to the ground below as a feat of courage or stunts.

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Missouri Attorney General Andrew Bailey (Graham Sloan/Bloomberg via Getty Images)

Chief Justice John Roberts used a different premise: “Government is not a monolith.” “Maybe the EPA is trying to enforce a code on something, and the Army Corps of Engineers is trying to force the opposite? So you can’t pick and choose which parts of the government you’re concerned about? That means you can’t do it.” ”

Justice Amy Coney Barrett interjected when plaintiffs’ lawyers argued that the federal government was indirectly involved in “encouraging” the platforms.

“Is it just a mundane encouragement, or does it have to be some kind of serious encouragement? Because encouragement is very widespread.”

Justice Elena Kagan raised national security concerns.

“Terrorists are doing something that falls under the First Amendment. Let’s say they’re just recruiting for their organization,” she asked online. “There are all sorts of things that can appear on these platforms that do all kinds of different harms, and the incompetence of governments that are suggesting that you contact these platforms and say, I know this: “We want to provide you with information that we may not be able to provide you with.” ”

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Jenin Younes, a lawyer with the New Civil Liberties Union, who represented individuals in the case, said they were “optimistic.”

“Our clients, including leading doctors and scientists, were censored for social media posts that turned out to be factually accurate, depriving the public of valuable perspective during a public health crisis. ” said Younes.

“The majority has looked at the record and recognized that this is a massive government censorship enterprise unprecedented in this country, and that it cannot be allowed to continue if the First Amendment is to survive. We are optimistic that it will.”

Fox News’ Bill Mears and David Spunt contributed to this report.